Parliamentary Privilege Minutes of Evidence

Examination of Witness (Questions 640 - 659)



Sir Patrick Cormack

  640. Did you see the evidence that Lord Weatherill, the former Speaker, gave last week? In dealing with this, he thought there was merit in the Speaker having powers that he or she could invoke similar to those that currently exist with the sub-judice rule in Parliament, because the real difficulty at the moment is that if a Member did what my Lord Chairman has suggested, the Chair has no powers; whereas if it is something concerning the sub-judice rule, there are orders in the House. The Chair has very clear powers and Lord Weatherill seemed to think that there could well be an advantage in going down that route.

  A. In other words, giving power to the Chair?

  641. Yes.

  A. I certainly would not think there was anything wrong in that. I am assuming that the Chair can assume whatever powers are required for the proper management of the business of the House. I do not know quite what the standing and status of the sub-judice rule is but, if it were thought right to have some equivalent, I see no objection to that. The question really, I suppose, is whether or not the person commits a crime by doing it or not from the point of view of the courts. It is not something which is likely to happen in the Scottish courts. I do not think we would have jurisdiction.

  642. It would be very wrong to make the saying of anything within Parliament a crime, but it is very proper for Members to recognise how important the privilege that they have is and to exercise a discretion. Indeed, only last week, Madam Speaker made an appeal to the House along those very lines when a Member made what was considered to be a slightly injudicious and rather offensive remark about somebody who could not answer back. She did make the point that you should always exercise these powers with great caution, so there could be a case for strengthening the power of the Chair in that regard.

  A. It is a terrific privilege which Parliament has and it is open to abuse. I therefore would expect that Madam Speaker or the appointed authorities for the House of Lords would also do what was required to try and curb abuses, but that seems to me to be a different thing from there being liability in the courts.

  Lord Waddington: One of the questions we have to ask ourselves is: are we entitled to assume that always in the future we will have good Speakers? There is no doubt about it that our system works because we have Speakers who have authority and, by and large, are able to persuade Members that with their great privileges go very great duties and they must not say things which are going to cause great damage to other interests. One wonders, when we are embarking on this exercise, whether we should not contemplate the possibility of things not always going as well in Parliament as they have thus far. I quoted a case early on in these proceedings where, in another Parliament in the Commonwealth, there was a case where a man got up and quite solemnly in the House of Assembly said, "I have in my hands an anonymous letter which says that this public servant acted in a most improper fashion. I shall now read this anonymous letter". The Speaker never stopped him. One must not get complacent and imagine that these things could never happen.

  Sir Patrick Cormack: Of course we must not get complacent but, by the same token, you must not take away the powers of Parliament merely because of some hypothetical thing that might happen.

  Lord Waddington: I am not suggesting that. I am suggesting that we have to be alert to the need to see how we can build up the position of a Speaker and put into him armament which a strong Speaker might not want but which a weaker Speaker might actually need to rely upon.


  643. Following Lord Waddington's example, if a Member of Parliament, as of course does happen, makes observations in speech which are highly critical of an individual outside Parliament and that individual takes the view that they are grossly defamatory of him, ought he to have any right of reply?

  A. I am not quite sure what is envisaged.

  644. Could provision be made, as I think has been attempted in Australia, to give the individual who claims to have been defamed by a parliamentarian speaking in Parliament some opportunity to state in public that what has been said about him is totally untrue and he resents it?

  A. I do not know how it would work in practice but I see no objection in principle to that because it would not impinge upon the freedom of Parliament; it would give an additional right. There must be occasions when people are damaged by things which are said in Parliament which are in fact simply untrue. Therefore, it would give additional protection.

Sir Patrick Cormack

  645. No member of the public is prevented from going to the press if they feel that they have been defamed in that way. The press are generally quite anxious to give publicity to such a person but I think—and I hope you agree with this—that it would be going down a very dangerous road to say that Mr X, about whom a critical speech has been made in Parliament, should therefore have the right to reply in a column in Hansard or something like that; that there should be a section of Hansard reserved for this subject's reply. I do think that would be very dangerous indeed. I think we should not go down that road and I hope you would not want us to do so.

  A. I do not know whether it would be a column in Hansard or where but it perhaps depends on whether one thinks that a Member of Parliament who had made a statement which was actually grossly defamatory and which turned out to be absolutely wrong would have the decency at some subsequent date to get up and correct it.

  646. Normally, another Member of Parliament will point that out and the Speaker will then generally do something about it.

  A. You will be familiar with how these matters might in practice be dealt with. I am not familiar with the kind of remedy which is envisaged. I am not sure that I regard it as being beyond the realms of possibility for such a thing to be introduced. It would have to be only in the very clearest kinds of cases, where something which was a pure question of fact which was demonstrably wrong had not been corrected.

  Lord Mayhew of Twysden: Chairman, this is not really a judicial matter; it is a matter for those of us in Parliament who wish to get at a practical and fair solution.

Mr Tyler

  647. If I can go a stage further, if a citizen in Scotland has access to a different sort of remedy from a citizen in any other part of the United Kingdom, then clearly there is a problem. I am no expert in this, but I recall that there have been occasions when the media in Scotland have been able to operate in rather a different way from the media in other parts of the United Kingdom. I just want to be absolutely confident, as a Member of the United Kingdom Parliament, that we are not likely to find, if we do start changing the arrangements, that citizens in different parts of the United Kingdom would have different remedies to hand.

  A. Well, the remedies, as such, are actually different. The technical remedies which people seek in court are actually slightly different in different parts of the United Kingdom, but I think the substance of the effect of the remedies, shall we say, I would expect should possibly turn out to be the same and I think they can in broad terms be aligned. I cannot think of one off-hand, but there are occasions where some of the remedies are different, they simply are different, because the procedures are different in the two courts, but I think the result, if you put it that way, should be achieving the same.


  648. You will know, Lord President, the extent to which Members of Parliament enjoy absolute privilege on various occasions. Is there a case for saying that that is either too extensive or not extensive enough?

  A. Again I am sorry, but these are things which I find very difficult to give the Committee a firm view on because I really do not know to what extent Members of Parliament feel in any way inhibited by the lack of absolute privilege in particular circumstances at the moment. I would have thought that most of the things which you do are covered by absolute privilege if you are speaking in the Chamber and so on, and I think there is a conundrum about exactly what is covered by other areas of absolute privilege, but even if you moved out of that, as long as you were communicating matters to others following your duty as Members of Parliament, then I think you would attract qualified privilege. Now, for most purposes I would have thought qualified privilege is sufficient because it protects a Member of Parliament or anybody else, provided that they are not acting, so to speak, maliciously. Now, it does not protect you of course so well perhaps from the raising of writs against you, and whether in practice that is something which happens, I do not know, but if you were being assailed with writs which you were then having to defend on the grounds that you had qualified privilege, then I perceive that there might be something to be said for moving to more extensive use of absolute privilege which presumably cut that down, but in the absence of that, I am not myself immediately aware of any particular need to extend the arrangements for absolute privilege.

  649. We have been considering "exclusive cognisance". You appreciate the position under which statutes do not apply to the Houses of Parliament unless there is specific provision in them that they should do so. Do you consider that that is appropriate or that the burden, the onus should be shifted the other way?

  A. I think it really very much is a question of drafting. The more fundamental question is the issue of policy in this case. I am slightly influenced in this because when I was Solicitor General, I argued a case which had dealt with Crown immunity, and I won on behalf of the Government, and then of course I suddenly found that the practice of Crown immunity was changing and that in fact there was now a desire to have on the whole the Crown bound by Acts of Parliament rather than not, so suddenly one found that all the clauses now were inserted saying that the Crown was bound. I think equally if, as a matter of substance, you decided that you wanted the Houses of Parliament to be covered by Acts of Parliament, then of course under the existing system you just have to start putting in appropriate clauses. The fundamental issue is whether or not the Houses of Parliament should or should not be covered by legislation or particular pieces of legislation. Now, you can do it either by changing the drafting onus or by leaving it as at present and simply giving instructions that Parliament should be covered more often, and that seems to me to be the position. Whether or not there are practical difficulties, and I am sure this is the sort of thing the draftsmen could tell you, whether or not there are practical difficulties in changing the position retrospectively so that one had a whole lot of Acts of Parliament which would suddenly apply to the Houses of Parliament which had not been thought to, I simply do not know.

Lord Archer of Sandwell

  650. But if you did include Parliament in some statutes, might it give rise to difficulties in practice? Just to take the obvious one which we all know about, suppose that licensing laws did apply to the bars in the Palace of Westminster and suppose someone was serving drinks after hours, do you see, Lord President, any difficulties in a prosecution there?

  A. Well, I think that would then became exactly the same issue in effect as we had before, but I think if Parliament were to make the licensing laws apply, then I think that the consequences which a court would be sorely tempted to draw would be that it meant what it said and, therefore, offences had been committed and, therefore, the implication was that people had to be able to be prosecuted for that. Who the correct person to prosecute would be, I just do not know. There might be somebody nominated, I suppose, and that has happened in the past.

  651. But you will not find yourself subpoenaing various members?

  A. Yes, you might, but I presume that that is the kind of issue which meant that hitherto things like the licensing laws have not applied, but that is why to me it seems that it turns up as an onus question in drafting and so on, but the substantial question is whether or not the laws should apply and, if so, what the implications of that are and one has to take account of that in a particular case. Health and safety legislation, for example, is another kind of area where one would expect that the substance, at any rate, of the law should be applied.


  652. Lord President, if there were an issue as to privilege which arose, should it be Parliament or the courts that should be the decisive factor? Your written reply in answer number 3 was that Parliament should, in the first instance, be the body that decided the extent of its privileges, but that if there were an issue that arose after that, there might be perhaps a reference to a judicial committee and you then set out some suggestions as to how that judicial committee might be composed. Can you develop that any further?

  A. I do not know whether there is much I can add. Part of my difficulty is that I do not quite know, as I say, the scope of the exercise, but if one is envisaging a sort of whole new bit of legislation on the rights of Parliament, parliamentary privilege and so on, then it does seem to me that this is an area, and in broad terms I take the view that it is desirable so far as possible, where the courts, the ordinary courts should not be involved in resolving these issues, but there will be issues to resolve and potentially, if they are not resolved, problems with human rights and so on, it does seem to me to be so and, therefore, one looks for a body which would command the confidence of Parliament in resolving, let us say, the issue as to the scope of the privilege of the House of Commons. Now, one could say the Judicial Committee, but that is the obvious first port of call one thinks of in the constitutional area, but I am not, and this is a matter which really Members of Parliament would have a much better feel for than I, I am not necessarily sure whether that body just as it is constituted was necessarily one which would have the fullest understanding of the issues involved. It was for that reason that I wondered whether or not it might be best to have people as assessors or whatever else in order to provide the understanding which would be necessary for any decisions which were taken.

  Sir Patrick Cormack: I think that is the crucial point, something I put in a paper some months ago in our House to another Committee, advocating that indeed there should be three who should come from the House of Lords, should be lawyers and should have served for many years in the House of Commons. We have some on this very Committee, on both sides of the Committee, who would fulfil those criteria.


  653. Are you suggesting that it would still be a court, as such, or are you suggesting that it would be a collection of legal and non-legal Members of the Privy Council? If it is going to be a court as such, it does not appear to me to occupy a sort of independent status as between the courts and Parliament.

  A. Well, it would depend how it was set up, and I presume we are envisaging here legislation and it would have to be set up in a way which made clear what it was if it was to be a court rather than a body to which reference was to be made. I have no very clear worked-out scheme in my head at all, but I think one could set it up as a court. I am not very familiar with the ecclesiastical courts, but I am sufficiently aware that there are models which are available there and I think it could be set up in a way which made it clear that it was independent and if you would like to call the Members of Parliament who are there "assessors", or whatever it was, then that might make it clear that the judicial people, it might be that theirs was the final decision, but that they took advice from the other people, or you could have it the other way, but I do not see any real difficulty in making it an independent body myself.

  654. Do Parliament's present procedures for holding someone in contempt and punishing them comply with the articles of the Human Rights Convention and if not, because there is no provision of appeal, would a body such as the judicial committee you were proposing, perhaps provide an answer to that.

  A. One does not know, but it looks to me as though there is at least a substantial risk that the present procedures would not meet the standards set up under the European Human Rights Convention. Very kindly I was given a reference to the Maltese case which I think highlights some of the difficulties in that area and I would not myself be confident that these procedures would survive scrutiny. The fact that there was an independent appeal would certainly assist. I think there is no doubt about it because there are cases where the Human Rights Court has held that there has been a breach at the first instance level, but nonetheless the fact that there has been a proper appeal which has been able to reconsider all the relevant issues has been held to provide sufficient safeguards for Article 6 to be fulfilled, so I think that that would help, but I think it does raise what I see as really quite a difficult issue and that is of course because the Human Rights Bill quite carefully exempts the Houses of Parliament from the legislation. I do not know quite exactly the thinking behind that and I presume it was partly in order to make it clear that Parliament is sovereign and so on, but it does seem to me that there is a potential for clashes and, therefore, it does seem to me that if we are to avoid the situation where the Strasbourg Court, which of course could always rule on it, was going to find that Parliament was not meeting its standards, it would be desirable to think of the machinery in terms of being Strasbourg-proof.

Lord Archer of Sandwell

  655. But, Lord President, in looking for a model for your appeal body, have you, as some former law officers have, experience of the body which decides peerage claims?

  A. I have not, but I am aware of it.

  656. Some of us have of course and that consists of lords of appeal and lay peers.

  A. I am aware of it. I do not have any personal experience of it.

Lord Waddington

  657. Before we get embroiled in this question as to what court of appeal there could be, should we not ask ourselves what sort of matters would be subject to appeal? Is it not inconceivable in this day and age that Parliament will wish to exercise authority over people outside Parliament and punish them, for instance, for trying to bribe a Member of Parliament? However good your system of appeal was, the whole procedure would be flawed from the start because nobody in Parliament is really capable of investigating, trying and punishing properly a person outside Parliament for an offence like bribery. So surely we should first of all address ourselves to the main issue, which is what sort of situations really are going to arise in the future which would need this great panoply of laws and machinery for appeal to protect ourselves against allegations of abuse of human rights. You would not really wish Parliament any longer to try somebody for bribing that body?

  A. If I may say so, I take the point which you made earlier, that of course one has got always to assume that things may not proceed in the future just exactly as they have proceeded in the recent past and there may be occasions when there would be abuses, but I think this is a matter really for you and whether or not you think that Parliament does require at the end of the day to have some means of enforcing its authority. I think that is really what we talk about in contempt of court, contempt of Parliament. Contempt of court is not something which is there for any other purpose, and certainly not as conceived nowadays, other than to ensure that the authority of the courts is respected. Now, in the same way, it is a question as to whether or not one has to have some residual power, and if so, what, to make sure that the authority of Parliament is enforced in certain circumstances. If so, and if it requires there to be the possibility of penalties being imposed, then I think one does have to come down to the question as to whether or not the procedures are correct.

Sir Patrick Cormack

  658. But there is another issue, is there not, with which this Committee is primarily concerned and that is how do we deal with Members of the House of Commons, or indeed the House of Lords, who are accused of being guilty of corruption, bribery and so on? Now, I think there was a general feeling in the House of Commons that when the Hamilton case was debated, which of course is one of the things which led to the setting up of this Committee, when it was debated before Christmas, the whole thing was rather unsatisfactory and one of the reasons advanced from both sides of the House was that during a pre or immediate post-election atmosphere, it was difficult to keep party politics completely out of it. Now, one of the great advantages of an appellate committee, such as you are talking of, is that there would be a body to whom a Member could appeal, and another advantage surely would be that if we went down the road that I referred to earlier of deciding not to rewrite the law in its entirety, but rather to waive privilege in certain specific and particular circumstances, that body could actually have an advisory and an assessing role in determining whether certain cases were so complex that they should be passed over to the civil courts.

  A. The second part really, as I say, I am not sufficiently familiar, but I take the point, if I may say so, that under present circumstances it looks to me that the real cases which arise are more likely to be ones involving Members of Parliament than people outside and I think that is the reality of it.

  659. Absolutely.

  A. But it is just as important that they should be dealt with properly and fairly, or it is at least as important an issue that they should be dealt with properly and fairly as people outside, and I think there obviously is an issue as to whether or not even their position is adequately dealt with at present, and I think it is certainly open to review. One could have arguments as to whether or not it is in substance a criminal jurisdiction and all that sort of thing, but I think it is open to question as to whether it is satisfactorily dealt with and as to whether or not an independent body of an appellate sort would not be of assistance.

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